Shevuot 42
עַפְצֵי דְּקָיְימִי בְּשִׁיתָּא שִׁיתָּא?״ אֲמַר לֵיהּ: ״לָאו בְּאַרְבְּעָה אַרְבָּעָה הֲווֹ קָיְימִי?״ אֲתוֹ תְּרֵי סָהֲדִי וַאֲמַרוּ: ״אִין, בְּאַרְבְּעָה אַרְבָּעָה הֲווֹ קָיְימִי״. אָמַר רָבָא: הוּחְזַק כַּפְרָן. אֲמַר רָמֵי בַּר חָמָא: הָא אָמְרַתְּ כֹּל מִילְּתָא דְּלָא רַמְיָא עֲלֵיהּ דְּאִינִישׁ לָאו אַדַּעְתֵּיהּ! אֲמַר לֵיהּ רָבָא: קִצּוּתָא דְּתַרְעָא מִידְכָּר דְּכִירִי אִינָשֵׁי.
of gallnuts [aftzei] that were worth six dinars for each kav at the time? The creditor said to him: Weren’t they worth four dinars for each kav at the time? Two witnesses came and said: Yes, they were worth four dinars per kav. Rava said that the debtor assumes the presumptive status of one who falsely denies his debts. Rami bar Ḥama said: But didn’t you say that anything that is not incumbent upon a person is not on his mind? Perhaps he merely forgot what the price of gallnuts was at the time that he paid. Rava said to him: People remember the standard, set market price.
הָהוּא דַּאֲמַר לֵיהּ לְחַבְרֵיהּ: ״הַב לִי מְאָה זוּזֵי דְּמַסֵּיקְנָא בָּךְ, וְהָא שְׁטָרָא״. אֲמַר לֵיהּ: ״פְּרַעְתִּיךָ״. אֲמַר לֵיהּ: ״הָנְהוּ סִיטְרָאֵי נִינְהוּ״. אָמַר רַב נַחְמָן: אִיתְּרַע שְׁטָרָא. רַב פָּפָּא אָמַר: לָא אִיתְּרַע שְׁטָרָא.
The Gemara relates: There was a certain person who said to another: Give me the hundred dinars that I claim from you, and this is the promissory note attesting to the debt. The latter said to him: I already repaid you. The creditor said to him: That money you gave me was for a different debt. Rav Naḥman said that the promissory note is undermined by the fact that the creditor admits that he received payment equal to the amount specified in the note, and his claim that there was an additional debt is unsubstantiated. Rav Pappa said that the promissory note is not undermined.
וּלְרַב פָּפָּא – מַאי שְׁנָא מֵהָהוּא דַּאֲמַר לֵיהּ לְחַבְרֵיהּ: ״הַב לִי מְאָה זוּזֵי דְּמַסֵּיקְנָא בָּךְ, וְהָא שְׁטָרָא״; אֲמַר לֵיהּ: ״לָאו אַתּוֹרֵי יְהַבְתְּ לִי, וַאֲתֵית וְאִיתֵּיבְתְּ אַמְּסַחְתָּא – וְקַבֵּילְתְּ זוּזָךְ?״ וַאֲמַר לֵיהּ: ״הָנְהוּ סִיטְרָאֵי נִינְהוּ״; וַאֲמַר רַב פָּפָּא: אִיתְּרַע שְׁטָרָא.
The Gemara asks: But according to Rav Pappa, in what way is this case different from the incident where a certain person said to another: Give me the hundred dinars that I claim from you, and this is the promissory note. The latter said to him: Didn’t you give me that money as an investment to be used for buying oxen to be slaughtered? And you came and sat in the slaughterhouse and received your money, including your share of the profits, from the sale of the slaughtered oxen. And the creditor said to him: That money you gave me was for a different debt. And Rav Pappa said that in that case the promissory note is undermined.
הָתָם, כֵּיוָן דְּקָאָמַר ״אַתּוֹרֵי יְהַבְתְּ לִי וּמִתּוֹרֵי שָׁקְלַתְּ״ – אִיתְּרַע שְׁטָרָא; הָכָא, אֵימוֹר סִיטְרָאֵי נִינְהוּ.
The Gemara answers: There, since the debtor said: You gave me the money for oxen and you took payment from oxen, and the creditor admitted that this had happened, the promissory note is undermined because there is no support for his claim that there was another debt in addition to the acknowledged transaction for the oxen. Here, say that the payment was in fact for a different debt.
מַאי הָוֵי עֲלַהּ? רַב פַּפֵּי אָמַר: לָא אִיתְּרַע שְׁטָרָא. רַב שֵׁשֶׁת בְּרֵיהּ דְּרַב אִידִי אָמַר: אִיתְּרַע שְׁטָרָא. וְהִלְכְתָא: אִיתְּרַע שְׁטָרָא.
What halakhic conclusion was reached about this matter? Rav Pappi said: The promissory note is not undermined, and Rav Sheshet, son of Rav Idi, said: The promissory note is undermined. And the halakha is that the promissory note is undermined.
וְהָנֵי מִילֵּי, דְּפַרְעֵיהּ בְּאַפֵּי סָהֲדִי וְלָא אִידְּכַר לֵיהּ שְׁטָרָא; אֲבָל פַּרְעֵיהּ בֵּין דִּידֵיהּ לְדִידֵיהּ – מִיגּוֹ דְּיָכוֹל לְמֵימַר ״לֹא הָיוּ דְבָרִים מֵעוֹלָם״, יָכוֹל נָמֵי לְמֵימַר ״סִיטְרָאֵי נִינְהוּ״, וּכְדַאֲבִימִי בְּרֵיהּ דְּרַבִּי אֲבָהוּ.
And this statement applies in a case where he repaid him in the presence of witnesses and did not mention the promissory note to the creditor; but in a case where he repaid him privately, between the two of them, in the absence of witnesses, since [miggo] the creditor can say to him: This matter never happened, i.e., he could deny that he received any payment, he can also say that this money was for a different debt. And this is like the case involving Avimi, son of Rabbi Abbahu, who repaid a debt in the absence of witnesses, and the creditor then claimed that the payment was for another debt (see Ketubot 85a).
הָהוּא דַּאֲמַר לֵיהּ לְחַבְרֵיהּ: ״מְהֵימְנַתְּ לִי כֹּל אֵימַת דְּאָמְרַתְּ לִי לָא פָּרַעְנָא״. אֲזַל פַּרְעֵיהּ בְּאַפֵּי סָהֲדִי. אַבָּיֵי וְרָבָא דְּאָמְרִי תַּרְוַיְיהוּ: הָא הֵימְנֵיהּ. מַתְקֵיף לַהּ רַב פָּפָּא: נְהִי דְּהֵימְנֵיהּ טְפֵי מִנַּפְשֵׁיהּ, טְפֵי מִסָּהֲדֵי מִי הֵימְנֵיהּ?!
The Gemara relates: There was a certain person who said to another who had lent him money: I deem you credible whenever you say to me that I did not repay the debt. He then went and repaid the debt in the presence of witnesses, and the creditor later denied that he had been repaid. Abaye and Rava both say that the witnesses are not deemed credible and the creditor can collect payment, as the debtor deemed him credible at the outset. Rav Pappa objects to this and says: Although he deemed him more credible than himself concerning the possibility that the debtor would claim that he repaid the debt and the creditor would deny having been repaid, did he deem him more credible than witnesses? Therefore, he is exempt.
הָהוּא דַּאֲמַר לֵיהּ לְחַבְרֵיהּ: ״מְהֵימְנַתְּ לִי כְּבֵי תְרֵי, כׇּל אֵימַת דְּאָמְרַתְּ לָא פָּרַעְנָא״. אֲזַל פַּרְעֵיהּ בְּאַפֵּי תְּלָתָא. אָמַר רַב פָּפָּא: כְּבֵי תְרֵי הֵימְנֵיהּ, כְּבֵי תְלָתָא לָא הֵימְנֵיהּ.
The Gemara relates: There was a certain person who said to another who had lent him money: I deem you credible like two witnesses whenever you say that I did not repay the debt. He went and repaid the debt in the presence of three witnesses. Rav Pappa said that the creditor cannot deny the testimony of three witnesses, as the debtor deemed him credible like two witnesses; he did not deem him credible like three witnesses.
אֲמַר לֵיהּ רַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ לְרַב פָּפָּא: אֵימוֹר דְּאָמְרִי רַבָּנַן דְּאָזְלִינַן בָּתַר רוֹב דֵּעוֹת – הָנֵי מִילֵּי לְעִנְיַן אוּמְדָּנָא, דְּכַמָּה דִּנְפִישִׁי בְּקִיאִי טְפֵי; אֲבָל לְעִנְיַן עֵדוּת – מְאָה כִּתְרֵי, וּתְרֵי כִּמְאָה!
Rav Huna, son of Rav Yehoshua, said to Rav Pappa: Say that although the Sages say that we follow the majority of opinions, and the opinion of three people is therefore accepted against the opinion of two, this statement applies with regard to assessing value, as the more people there are, the more knowledgeable they are. But with regard to testimony, one hundred witnesses are like two, and two are like one hundred. Therefore, in this case there is no distinction between two witnesses and three witnesses.
לִישָּׁנָא אַחֲרִינָא, הָהוּא דַּאֲמַר לֵיהּ לְחַבְרֵיהּ: ״מְהֵימְנַתְּ לִי כְּבֵי תְרֵי, כֹּל אֵימַת דְּאָמְרַתְּ לָא פָּרַעְנָא״. אֲזַל וּפַרְעֵיהּ בְּאַפֵּי תְּלָתָא. אָמַר רַב פָּפָּא: כְּבֵי תְרֵי הֵימְנֵיהּ, כְּבֵי תְלָתָא לָא הֵימְנֵיהּ.
The Gemara presents another version of the incident: A certain person said to another who had lent him money: I deem you credible like two witnesses whenever you say that I did not repay. He went and repaid the debt in the presence of three witnesses. Rav Pappa said that the creditor cannot deny their testimony, as the debtor deemed him credible like two witnesses; he did not deem him credible like three witnesses.
מַתְקֵיף לַהּ רַב הוּנָא בְּרֵיהּ דְּרַב יְהוֹשֻׁעַ: תְּרֵי כִּמְאָה, וּמְאָה כִּתְרֵי! וְאִי אֲמַר לֵיהּ ״כְּבֵי תְלָתָא״, וַאֲזַל פַּרְעֵיהּ בְּאַפֵּי בֵּי אַרְבְּעָה – כֵּיוָן דִּנְחֵית לְדֵעוֹת, נְחֵית לְדֵעוֹת.
Rav Huna, son of Rav Yehoshua, objects to this: Two witnesses are like one hundred, and one hundred are like two. But if the debtor said to the creditor that he deems him credible like three witnesses, and then went and repaid him in the presence of four, then once he entered, by mentioning a larger number than what is necessary for testimony, the realm of opinions, in which three people carry greater weight than two, he has entered the realm of opinions, and four witnesses are deemed more credible than three. Therefore, the creditor is not deemed credible against them.
אֵין נִשְׁבָּעִין עַל טַעֲנַת חֵרֵשׁ שׁוֹטֶה וְקָטָן, וְאֵין מַשְׁבִּיעִין אֶת הַקָּטָן. מַאי טַעְמָא? אָמַר קְרָא: ״כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ כֶּסֶף אוֹ כֵלִים לִשְׁמוֹר״, וְאֵין נְתִינַת קָטָן כְּלוּם.
§ The mishna teaches: One does not take an oath concerning the claim of a deaf-mute, an imbecile, or a minor, and the court does not administer an oath to a minor. The Gemara asks: What is the reason? The Gemara answers that in the passage from which the halakhot of admission to part of a claim are derived, the verse states: “If a man delivers to his neighbor silver or vessels to safeguard” (Exodus 22:6). The word “man” indicates that the reference is only to adults, and delivery by a minor is nothing, i.e., it is not recognized as a halakhically significant act, as a minor is not halakhically competent.
אֲבָל נִשְׁבָּעִין לְקָטָן וּלְהֶקְדֵּשׁ. וְהָא אָמְרַתְּ רֵישָׁא: אֵין נִשְׁבָּעִין עַל טַעֲנַת שׁוֹטֶה וְקָטָן!
§ The mishna teaches: But one does take an oath to a minor, or to a representative of the Temple treasury with regard to consecrated property. The Gemara asks: But didn’t you say in the first clause that one does not take an oath concerning the claim of a deaf-mute, an imbecile, or a minor?
אָמַר רַב: בְּבָא בְּטַעֲנַת אָבִיו, וְרַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב הִיא; דְּתַנְיָא, רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב אוֹמֵר: פְּעָמִים שֶׁאָדָם נִשְׁבָּע עַל טַעֲנַת עַצְמוֹ. כֵּיצַד? אָמַר לוֹ: ״מָנֶה לְאָבִיךָ בְּיָדִי וְהֶאֱכַלְתִּיו פְּרָס״ – הֲרֵי זֶה נִשְׁבָּע, וְזֶהוּ שֶׁנִּשְׁבָּע עַל טַעֲנַת עַצְמוֹ. וַחֲכָמִים אוֹמְרִים: אֵינוֹ אֶלָּא כְּמֵשִׁיב אֲבֵידָה, וּפָטוּר.
Rav said: The halakha that one takes an oath concerning the claim of a deaf-mute, an imbecile, or a minor is with regard to one who comes to court with a claim for a debt owed to his late father, and it is in accordance with the opinion of Rabbi Eliezer ben Ya’akov, as it is taught in a baraita that Rabbi Eliezer ben Ya’akov says: There are times when although no one claimed of a person that he owes money, that person takes an oath on the basis of his own claim. How so? If one said to another: Your father had one hundred dinars in my possession, but I provided him with repayment of half that amount, he is liable to take an oath that he repaid half; and that is the case of one who takes an oath on the basis of his own claim. And the Rabbis say: In that case he is only like one returning a lost item, as the son did not claim the money at all, and is exempt from taking an oath.
וְרַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב – לֵית לֵיהּ מֵשִׁיב אֲבֵידָה פָּטוּר?! אָמַר רַב: בְּשֶׁטְּעָנוֹ קָטָן.
The Gemara asks: But is Rabbi Eliezer ben Ya’akov not of the opinion that one who returns a lost item is exempt from taking an oath attesting to the fact that he did not take anything from it? Rav said: The baraita is referring to a case where a minor advanced a claim against him. The creditor’s minor son claimed that the debtor did not repay any part of the loan to his father. The debtor’s partial admission came in response to that claim. Therefore, his admission is not comparable to the act of returning a lost item.
קָטָן?! וְהָאָמְרַתְּ: אֵין נִשְׁבָּעִין עַל טַעֲנַת חֵרֵשׁ שׁוֹטֶה וְקָטָן! לְעוֹלָם גָּדוֹל, וְאַמַּאי קָרוּ לֵיהּ קָטָן? דִּלְגַבֵּי מִילֵּי דַּאֲבוּהּ – קָטָן הוּא.
The Gemara asks: How can the baraita be referring to the claim of a minor? But didn’t you say in the mishna that one does not take an oath concerning the claim of a deaf-mute, an imbecile, or a minor? The Gemara answers: Actually, the reference is to an adult son; and why did Rav call him a minor? It was due to the fact that with regard to his father’s matters, one is like a minor, as he is uncertain about the particulars of his father’s dealings. Here, too, Rav explains that the halakha in the mishna that one takes an oath to a minor is referring to an adult claiming a debt owed to his late father.
אִי הָכִי, ״טַעֲנַת עַצְמוֹ״?! טַעֲנַת אֲחֵרִים הִיא! טַעֲנַת אֲחֵרִים, וְהוֹדָאַת עַצְמוֹ.
The Gemara asks: If so, if the son making the claim has already reached majority, the language of the baraita is imprecise. Why does the tanna describe the individual as one taking an oath on the basis of his own claim? This is not his own claim; it is the claim of others. The Gemara answers: The baraita employed that language because although it is the claim of others, he is taking an oath on the basis of that claim and his own partial admission.
כּוּלְּהוּ נָמֵי טַעֲנַת אֲחֵרִים וְהוֹדָאַת עַצְמוֹ נִינְהוּ!
The Gemara challenges: All other cases where the defendant is required to take an oath due to a partial admission are also cases of a claim of others and his own admission. Yet in the baraita Rabbi Eliezer ben Ya’akov introduces his opinion with the term: There are times, indicating that the case to which he is referring, of one taking an oath on the basis of his own claim, is not the standard case of an oath due to a partial admission.
אֶלָּא בִּדְרַבָּה קָמִיפַּלְגִי – דְּאָמַר רַבָּה: מִפְּנֵי מָה אָמְרָה תּוֹרָה מוֹדֶה מִקְצָת הַטַּעֲנָה יִשָּׁבַע? חֲזָקָה אֵין אָדָם מֵעִיז פָּנָיו בִּפְנֵי בַּעַל חוֹבוֹ. וְהַאי – בְּכוּלֵּיהּ בָּעֵי דְּלִיכְפְּרֵיהּ, וְהַאי דְּלָא כַּפְרֵיהּ – מִשּׁוּם דְּאֵינוֹ מֵעִיז פָּנָיו בִּפְנֵי בַּעַל חוֹבוֹ;
The Gemara answers: Rather, Rabbi Eliezer ben Ya’akov and the Rabbis disagree with regard to the statement of Rabba, as Rabba says: For what reason did the Torah say that one who admits to a part of the claim must take an oath? It is because there is a presumption that a person does not exhibit insolence by lying in the presence of his creditor, who did him a favor by lending money to him. And this person who denies part of the claim actually wants to deny all of the debt, so as to be exempt, and this fact, i.e., that he does not deny all of it, is because a person does not exhibit insolence in the presence of his creditor.
וּבְכוּלֵּיהּ בָּעֵי דְּלוֹדֵי לֵיהּ, וְהַאי דְּלָא אוֹדִי לֵיהּ – אִישְׁתְּמוֹטֵי הוּא דְּקָא מִשְׁתְּמִיט מִינֵּיהּ, סָבַר: עַד דְּהָוֵי לִי זוּזֵי וּפָרַעְנָא לֵיהּ; וְרַחֲמָנָא אָמַר רְמִי שְׁבוּעָה עִילָּוֵיהּ, כִּי הֵיכִי דְּלוֹדֵי לֵיהּ בְּכוּלֵּיהּ.
Rabba continues: And in order not to exhibit insolence, he wants to admit to the creditor with regard to all of the debt; and this fact, i.e., that he did not admit the entire debt to him, is because he may be temporarily avoiding paying him. He rationalizes doing so by saying to himself: I am avoiding him only until the time that I have enough money, and then I will repay him. And therefore, the Merciful One says in the Torah: Impose an oath on him in order to induce the debtor to admit the entire debt to him.
רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב סָבַר: לָא שְׁנָא בּוֹ וְלָא שְׁנָא בִּבְנוֹ – אֵינוֹ מֵעֵיז, וְהִלְכָּךְ לָאו מֵשִׁיב אֲבֵידָה הוּא. וְרַבָּנַן סָבְרִי: בְּפָנָיו הוּא דְּאֵינוֹ מֵעֵיז, אֲבָל בִּפְנֵי בְּנוֹ מֵעֵיז; וּמִדְּלֹא מֵעֵיז – מֵשִׁיב אֲבֵידָה הוּא.
With regard to this principle, Rabbi Eliezer ben Ya’akov maintains: It is no different with regard to the creditor himself, and it is no different with regard to his son; the debtor would not exhibit insolence and deny the debt. And therefore, he is not deemed as one returning a lost item on his own initiative; rather, this is an ordinary case where one admits to a part of a claim and is therefore required to take an oath. And the Rabbis maintain: It is in the presence of the original creditor that one would not exhibit insolence; but in the presence of his son, who did not lend him the money, he would exhibit insolence and deny the claim entirely. And since this debtor is not exhibiting insolence, as he could have denied the loan completely but instead is opting to admit to part of the claim, he is deemed as one returning a lost item, and his claim is accepted without his taking an oath.
מִי מָצֵית מוֹקְמַתְּ לַהּ כְּרַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב?! הָא קָתָנֵי רֵישָׁא: ״מָנֶה לְאַבָּא בְּיָדְךָ״, ״אֵין לְךָ בְּיָדִי אֶלָּא חֲמִשִּׁים דִּינָר״ – פָּטוּר, מִפְּנֵי שֶׁמֵּשִׁיב אֲבֵידָה הוּא! הָתָם דְּלָא אָמַר ״בָּרִי לִי״, הָכָא דְּאָמַר ״בָּרִי לִי״.
The Gemara asks: Can you interpret the mishna in accordance with the opinion of Rabbi Eliezer ben Ya’akov? Isn’t it taught in the former clause that if the claimant said: My late father had one hundred dinars in your possession, and the defendant responded: You have only fifty dinars in my possession, he is exempt from taking an oath, as he is like one returning a lost item? The Gemara answers: There, it is referring to a case where the claimant did not say: I am certain that you owe my father this money, but rather made an uncertain claim. In such a case, Rabbi Eliezer ben Ya’akov agrees that the defendant is like one returning a lost item. Here, by contrast, it is a case where he said: I am certain that you owe him.
שְׁמוּאֵל אָמַר: ״לְקָטָן״ – לִיפָּרַע מִנִּכְסֵי קָטָן, ״לַהֶקְדֵּשׁ״ – לִיפָּרַע מִנִּכְסֵי הֶקְדֵּשׁ.
Returning to the Gemara’s question with regard to the last clause of the mishna, which states that one takes an oath to a minor, or to a representative of the Temple treasury, Shmuel said a different answer: When the mishna spoke about taking an oath to a minor, it was referring to a case where the debtor died; the creditor must take an oath to the minor heir attesting that he was not repaid in order to collect from the minor’s property. Similarly, if one’s debtor consecrated his property, he takes an oath to a representative of the Temple treasury in order to collect from the consecrated property.
לְקָטָן לִיפָּרַע מִנִּכְסֵי קָטָן – תְּנֵינָא: מִנִּכְסֵי יְתוֹמִים לֹא יִפָּרַע אֶלָּא בִּשְׁבוּעָה! תַּרְתֵּי לְמָה לִי?
The Gemara challenges: The halakha that one takes an oath to a minor in order to collect from a minor’s property is one that we learn in the mishna (45a): A woman who comes to collect the payment for her marriage contract from the property of orphans collects only by means of an oath. Why do I need two mishnayot to teach this halakha?
הָא קָמַשְׁמַע לַן – כִּדְאַבָּיֵי קַשִּׁישָׁא; דְּתָנֵי אַבָּיֵי קַשִּׁישָׁא: יְתוֹמִין שֶׁאָמְרוּ – גְּדוֹלִים, וְאֵין צָרִיךְ לוֹמַר קְטַנִּים; בֵּין לִשְׁבוּעָה בֵּין לְזִיבּוּרִית.
The Gemara answers: By mentioning this halakha twice, the Mishna teaches us this: The halakha applies with regard to both minor and adult orphans, in accordance with the statement of Abaye the Elder; as Abaye the Elder taught: The orphans of which the Sages spoke are adult orphans, and needless to say, the same halakha also applies to minor orphans. This principle applies with regard to both the halakha that a debt can be collected from the property of an orphan only by means of an oath, and to the halakha that a debt can be collected from the property of an orphan only from inferior-quality land.
לְהֶקְדֵּשׁ לִיפָּרַע מִנִּכְסֵי הֶקְדֵּשׁ – תְּנֵינָא: מִנְּכָסִים מְשׁוּעְבָּדִים לֹא יִפָּרְעוּ אֶלָּא בִּשְׁבוּעָה; וּמָה לִי מְשׁוּעְבָּדִים לְהֶדְיוֹט, וּמָה לִי מְשׁוּעְבָּדִים לְגָבוֹהַּ?
With regard to Shmuel’s explanation of the mishna that one takes an oath to a representative of the Temple treasury in order to collect a debt from consecrated property, the Gemara asks: We learn this halakha in the mishna (45a): From liened property that has been sold one collects a debt only by means of an oath. And what difference is it to me whether the property was liened to an ordinary person, and what difference is it to me whether the property was liened to the Most High, i.e., it was consecrated?
אִיצְטְרִיךְ; סָלְקָא דַּעְתָּךְ אָמֵינָא: הֶדְיוֹט הוּא דְּאָדָם עוֹשֶׂה קְנוּנְיָא עַל הֶדְיוֹט; אֲבָל הֶקְדֵּשׁ, דְּאֵין אָדָם עוֹשֶׂה קְנוּנְיָא עַל הֶקְדֵּשׁ – קָא מַשְׁמַע לַן.
The Gemara answers: It was necessary for this halakha to be stated separately with regard to collecting a debt from the Temple treasury. Otherwise it might enter your mind to say that it is specifically in order to collect a debt from an ordinary person that one is required to take an oath, as a person is liable to collude with another against an ordinary person who purchased property, by producing a promissory note for a debt that was already repaid in order to collect property from the purchasers of land that had been liened to that debt. But one might have thought that in order to collect a debt from the Temple treasury, a person is not required to take an oath, as a person does not collude with another against the Temple treasury. Therefore, the mishna teaches us that one is required to take an oath even in order to collect a debt from the Temple treasury, as one is suspected of collusion in this case as well.
וְהָאָמַר רַב הוּנָא: שְׁכִיב מְרַע שֶׁהִקְדִּישׁ כׇּל נְכָסָיו, וְאָמַר: ״מָנֶה לִפְלוֹנִי בְּיָדִי״ – נֶאֱמָן, חֲזָקָה אֵין אָדָם עוֹשֶׂה קְנוּנְיָא עַל הֶקְדֵּשׁ! אָמְרִי: הָנֵי מִילֵּי שְׁכִיב מְרַע, דְּאֵין אָדָם חוֹטֵא וְלֹא לוֹ; אֲבָל גַּבֵּי בָּרִיא, וַדַּאי חָיְישִׁינַן.
The Gemara asks: But doesn’t Rav Huna say that in the case of a person on his deathbed who consecrated all of his property, and said: So-and-so has one hundred dinars in my possession, his statement is deemed credible, as the presumption is that a person does not collude with another against the Temple treasury? The Sages said in response: That statement applies only in the case of a person on his deathbed, as a person sins only for his own benefit. One is not suspected of deceiving the Temple treasury for the benefit of his heirs. But with regard to a healthy person, we are certainly concerned about collusion, even against the Temple treasury.
מַתְנִי׳ וְאֵלּוּ דְּבָרִים שֶׁאֵין נִשְׁבָּעִין עֲלֵיהֶן: הָעֲבָדִים וְהַשְּׁטָרוֹת וְהַקַּרְקָעוֹת וְהַהֶקְדֵּשׁוֹת. אֵין בָּהֶן תַּשְׁלוּמֵי כֶפֶל וְלֹא תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה, שׁוֹמֵר חִנָּם אֵינוֹ נִשְׁבָּע, נוֹשֵׂא שָׂכָר אֵינוֹ מְשַׁלֵּם.
MISHNA: And these are items concerning which one does not take an oath by Torah law: Canaanite slaves, and financial documents, and land, and consecrated property. In a case where these items are stolen, there is no payment of double the principal, nor is there payment of four or five times the principal in a case where one stole a consecrated animal and slaughtered or sold it. An unpaid bailee who lost one of these items does not take an oath that he was not negligent in safeguarding it, and a paid bailee does not pay for the loss or theft of one of these items.
רַבִּי שִׁמְעוֹן אוֹמֵר: קֳדָשִׁים שֶׁחַיָּיב בְּאַחְרָיוּתָן – נִשְׁבָּעִין עֲלֵיהֶן, וְשֶׁאֵינוֹ חַיָּיב בְּאַחְרָיוּתָן – אֵין נִשְׁבָּעִין עֲלֵיהֶן.
Rabbi Shimon says there is a distinction between different types of consecrated property: With regard to consecrated property for which one bears the financial responsibility to compensate the Temple treasury in the event of their loss, such as in a case where he vowed to bring an offering and then set aside an animal to be sacrificed in fulfillment of the vow, one takes an oath concerning them, as they are considered his own property. But with regard to consecrated property for which he does not bear the financial responsibility for their loss, one does not take an oath concerning them.
רַבִּי מֵאִיר אוֹמֵר: יֵשׁ דְּבָרִים שֶׁהֵן בְּקַרְקַע וְאֵינָן כְּקַרְקַע; וְאֵין חֲכָמִים מוֹדִים לוֹ. כֵּיצַד? ״עֶשֶׂר גְּפָנִים טְעוּנוֹת מָסַרְתִּי לָךְ״, וְהַלָּה אוֹמֵר: ״אֵינָן אֶלָּא חָמֵשׁ״. רַבִּי מֵאִיר מְחַיֵּיב שְׁבוּעָה, וַחֲכָמִים אוֹמְרִים: כׇּל הַמְחוּבָּר לְקַרְקַע – הֲרֵי הוּא כְּקַרְקַע.
Rabbi Meir says: There are certain items that are physically on the land but are not treated like land from a halakhic perspective, and the Rabbis do not concede to him concerning this point. How so? If one makes the claim: I assigned you ten grapevines laden with fruit to safeguard, and the other one says: They are only five vines, Rabbi Meir deems the defendant liable to take an oath, as he admitted to a part of the claim, and although the claim concerned grapevines, the primary aspect of the claim was the grapes. And the Rabbis say: The halakhic status of anything that is attached to the land is like the land itself, and therefore he is exempt from taking an oath.
אֵין נִשְׁבָּעִין אֶלָּא עַל דָּבָר שֶׁבְּמִדָּה וְשֶׁבְּמִשְׁקָל וְשֶׁבְּמִנְיָן. כֵּיצַד? ״בַּיִת מָלֵא מָסַרְתִּי לָךְ״ וְ״כִיס מָלֵא מָסַרְתִּי לָךְ״, וְהַלָּה אוֹמֵר: ״אֵינִי יוֹדֵעַ, אֶלָּא מָה שֶׁהִנַּחְתָּ אַתָּה נוֹטֵל״ – פָּטוּר. זֶה אוֹמֵר ״עַד הַזִּיז״ וְזֶה אוֹמֵר ״עַד הַחַלּוֹן״ – חַיָּיב.
One takes an oath only concerning an item that is defined by size, by weight, or by number. How so? If the claimant says: I transferred to you a house full of produce, or: I transferred to you a pouch full of money, and the other person says: I do not know how much you gave me, but what you left in my possession you may take, and the amount in the house or pouch at that time is less than that claimed by the claimant, the defendant is exempt from taking an oath, as the amounts in the claim and the admission are undefined. But if this party says that the house was full up to the ledge, and that party says that it was full up to the window, the defendant is liable to take an oath, as the dispute relates to a defined amount.
גְּמָ׳ תַּשְׁלוּמֵי כֶפֶל מְנָלַן? דְּתָנוּ רַבָּנַן: ״עַל כׇּל דְּבַר פֶּשַׁע״ – כְּלָל; ״עַל שׁוֹר״ וְ״עַל חֲמוֹר״ וְ״עַל שֶׂה״ וְ״עַל שַׂלְמָה״ – פְּרָט; ״עַל כׇּל אֲבֵדָה״ – חָזַר וְכָלַל.
GEMARA: From where do we derive that one is exempt from the payment of double the principal with regard to the items mentioned in the mishna? It is as the Sages taught in a baraita with regard to the verse that discusses double payment: “For every matter of trespass, whether it be for an ox, for a donkey, for a sheep, for clothing, or for any manner of lost thing…he shall pay double to his neighbor” (Exodus 22:8). This verse is expounded in the following manner: The phrase “for every matter of trespass” is a generalization; the phrase “whether it be for an ox, for a donkey, for a sheep, for clothing” is a detail; and when the verse states: “Or for any manner of lost thing,” it then generalized again.
כְּלָל וּפְרָט וּכְלָל – אִי אַתָּה דָן אֶלָּא כְּעֵין הַפְּרָט; מָה הַפְּרָט מְפוֹרָשׁ – דָּבָר הַמִּטַּלְטֵל וְגוּפוֹ מָמוֹן, אַף כׇּל דָּבָר הַמִּטַּלְטֵל וְגוּפוֹ מָמוֹן.
Consequently, this verse contains a generalization, and a detail, and a generalization, and one of the thirteen principles of exegesis states that in such a case you may deduce that the verse is referring only to items similar to the detail. Applying this principle here, one may conclude that just as each of the items mentioned in the detail is clearly defined as an item that is movable property and has intrinsic monetary value, so too, anything that is movable property and has intrinsic monetary value is subject to double payment.
יָצְאוּ קַרְקָעוֹת – שֶׁאֵין מְטַלְטְלִין; יָצְאוּ עֲבָדִים – שֶׁהוּקְּשׁוּ לְקַרְקָעוֹת; יָצְאוּ שְׁטָרוֹת – שֶׁאַף עַל פִּי שֶׁהֵן מִטַּלְטְלִין, אֵין גּוּפָן מָמוֹן; הֶקְדֵּשׁ – ״רֵעֵהוּ״ כְּתִיב.
Land is therefore excluded, as it is not movable property. Canaanite slaves are also excluded, as they are compared to land in many areas of halakha. Financial documents are excluded, since although they are movable property, they do not have intrinsic monetary value. The value of the paper itself is negligible; documents are valuable only because they serve as proof of monetary claims. Finally, consecrated property is excluded because it is written in the verse: “He shall pay double to his neighbor,” i.e., to his fellow man, but not to a representative of the Temple treasury.
וְלֹא תַּשְׁלוּמֵי כֶפֶל וְלֹא אַרְבָּעָה וַחֲמִשָּׁה. מַאי טַעְמָא? תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה אָמַר רַחֲמָנָא, וְלֹא תַּשְׁלוּמֵי שְׁלֹשָׁה וְאַרְבָּעָה.
The mishna teaches: And there is no payment of double the principal, nor is there payment of four or five times the principal for stealing consecrated animals. The Gemara asks: What is the reason for the exclusion of the payment of four or five times the principal? The Gemara answers: Since payment of double the principal is excluded, that leaves, in a case where one steals and then slaughters or sells a consecrated animal, a total payment of only three or four times the principal, as the payment of double the principal is included in the larger payment for selling or slaughtering it. Therefore, since the Merciful One states in the Torah fourfold or fivefold payment, and not threefold or fourfold payment, one who steals a consecrated animal and slaughters it or sells it is exempt from the additional payments.
שׁוֹמֵר חִנָּם אֵינוֹ נִשְׁבָּע. מְנָא הָנֵי מִילֵּי? דְּתָנוּ רַבָּנַן:
§ The mishna teaches: An unpaid bailee who lost one of the excluded items does not take an oath. The Gemara asks: From where are these matters derived? The Gemara answers that it is as the Sages taught in a baraita:
